Copyright and Fan Art: An Illustrator’s View

First of all, for anyone who needs to know, here is a statement to make clear my position on copyright and fan art:

If I create illustrations based on copyrighted characters/stories/etc, I do not make any money from these – either as prints, merchandising, or original art sales. They exist only as works of ‘fan art’ (an expression of my admiration/interest in those characters/etc), or for the purposes of showcasing my skills. If any prints are produced, these are only for the purposes of sending samples of my work to prospective clients. I respect copyright, and do not want to infringe on anyone else’s. If you are the copyright owner of any works/characters/etc portrayed on this site, you disagree with any usage of it for the stated purposes and wish me to desist, please get in touch and I will comply immediately.

Anyway, that’s my basic position. I tried to make that as concise as possible!

Regarding illustration, what I’m calling ‘fan art’ is somewhat of a grey and complicated area. Anyone who has ever been to a comic book convention, or has seen the sorts of commissions produced in artists’ alley, may have wondered how this sits with the copyright owners. Are they happy? There’s a very interesting talk given by the copyright lawyer from Deviantart which sets all this out, but the basic answer would seem to be ‘yes – and no’. If you’re Adam Hughes or J. Scott Campbell, or any sort of jobbing artist, and you’re providing one-off original sketches of Batman or Wonder Woman (or whatever), then that would seem to be fine. Technically, even here, someone such as Marvel or DC would be within their rights to ask any artist to cease and desist from selling such artwork (unless a case could be made that it was an original work, in some way – see the video and the Darth Maul example), but it seems that, in practice, they’re more or less happy to turn a blind eye. This is partly because it does no real harm – the ‘brand’ of Superman is not being undermined by artists producing original drawings for fans – far from it. You may argue that, especially if the work is good, it reinvigorates the ‘brand’, keeps it alive and in the public consciousness, and in some cases may even serve to resurrect and popularise minor or forgotten characters. Similarly, if amateur artists or fans produce ‘fan art’ – sketches or fun doodles or cartoons of Deadpool or Harley Quinn – they’re simply expressing their love for the characters, and sharing it with others (e.g. on social media). This case is even more straight forward than the artists’ alley example, because at least here no profit is involved.

The ‘not happy’ part of the answer seems to be where fan art becomes merchandising. Selling a single sketch of Deadpool is different to selling that work on a t-shirt on Society 6 or Red Bubble. Anyone attempting to do so can expect to be shut down, at some point. A contentious case would be the kind of ‘mash-up’ t-shirt designs you get on such sites as Teefury or Threadless, or other similar sites. These would seem to walk a very tricky line, and to be honest I’ve no idea how they get away with it. For instance, how do you think the J.R.R. Tolkien estate and Bill Waterhouse feel about this?

By the way, I’ve nothing against this sort of thing – some of it (such as the above – I hope they don’t mind me using this image! – by artist Cool Johnny, taken from Threadless) is charming and beautifully done, and I would rather it it existed than be quashed by the copyright owners. But, when you think of the fact that even an artist’s drawing style can be a matter of copyright, it does make you wonder how busy the lawyers for such sites are.

The line can sometimes be blurry: someone may start a Patreon account (as I have) and offer rewards to patrons in the form of commissions. Let’s say that some of these commissions are of copyrighted characters. Is this allowable? Technically, money is changing hands in relation to someone else’s intellectual property. How is this different to artists’ alley commissions? It isn’t, and whether it is allowed seems to depend on the policy of the website where the work is hosted, and how vigilantly the copyright holder polices potential infringements. In this case, Patreon’s attitude would seem to be that, unless the creator is abusing copyright in an outrageous way (e.g. writing ‘new’ Harry Potter stories, or drawing ‘new’ Batman comics), they will simply wait to see if they receive a complaint, at which point they will simply take the offending works/account down. In my own case, with The Illustrated Book Club, I decided to sidestep this whole problem by simply choosing books that are in the public domain.

The chief lesson from all of this seems to be that, where you are not the copyright holder (and it’s not public domain), all usage of others’ copyrighted material is done so at your own risk. Most of the ‘allowable’ examples cited above are at the sole discretion of the copyright holder. It would therefore be completely within Marvel’s rights to ask the artists in artists’ alley not to sell commissions of its characters. That they generally turn a blind eye says nothing about the law, which is pretty clear in this respect. Even if no money is involved, a copyright holder may ask you to remove some use of their intellectual property that they don’t like.

I should just make clear that these are my personal thoughts. I’ve tried to get advice from fellow illustrators and professional organisations, but at the end of the day it’s just my understanding of the situation. And there are still things I’m not 100% sure about. For instance, I produce a lot of caricature/portraiture, and I understand that – where these are living (or recently dead) individuals – then someone might take offence (the individual in question, or their estate/family). This edges into the field of libel, but then surely political cartoonists must be protected for the purposes of satire? Luckily, I’m not a political cartoonist, so I don’t have to worry too much about that, but even with my relatively tame style I’ve had to doctor published caricatures so as not to even suggest something that individuals might potentially be offended at. Even if it turned out to be defensible, no one wants to be a test legal case – it’s just too potentially expensive.

A final grey area is perhaps the caricature of individuals which reference copyright works. A caricature or portrait of George Orwell might not be libellous or offensive, and therefore allowable (as long as it was not a straight copy of a copyright photograph!), but what if he were portrayed as Winston Smith, in one of the scenes from 1984? Could that be a potential infringement of intellectual property? 1984 does not enter the public domain in the UK until 2021, and in the US, not until 2044 (though it is in the public domain in other countries – which is itself another headache, especially concerning internet usage where it’s hard to restrict availability to a specific location). It’s interesting to note that Apple got into trouble for its 1984 inspired commercial broadcast in that year, and the Orwell estate is still rather litigious, even with smallscale use. Maybe it’s best to steer clear of Orwell until then…?

Anyway, as I’ve said, given all of the above problems, I’ve decided to adopt the simple policy stated at the beginning. I make no money from others’ intellectual property in any form. Where I do produce illustrations using others’ copyrighted material, I do so only to showcase my skills as a book illustrator – just as a singer may perform a cover version. Even then, I realise that a copyright holder might take offence; and if they don’t, it’s simply out of goodwill, and not due to any freedom I have to use their material for these purposes. I’m happy to remove any offending work.

Then why take any risk at all? Why don’t illustrators and artists simply stick to original creator-owned art, or illustrations inspired by public domain works? Perhaps it’s just as simple as this: to get work, illustrators – as much as singers – occasionally need to reflect modern tastes and interests, to piggy-back on what’s popular. Even established professional artists don’t seem to be immune to this (look out for the recent slew of ‘fan art’ inspired by ‘Stranger Things’, or whatever else is ‘trending’). To continue the singing analogy: Mozart and Purcell are fine but, even if only now and then, more ears will prick up by singing something a little more contemporary.